College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2016 e Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches Adam M. Gershowitz William & Mary Law School, [email protected]Copyright c 2016 by the authors. is article is brought to you by the William & Mary Law School Scholarship Repository. hps://scholarship.law.wm.edu/facpubs Repository Citation Gershowitz, Adam M., "e Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches" (2016). Faculty Publications. 1820. hps://scholarship.law.wm.edu/facpubs/1820
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College of William & Mary Law SchoolWilliam & Mary Law School Scholarship Repository
Faculty Publications Faculty and Deans
2016
The Post-Riley Search Warrant: Search Protocolsand Particularity in Cell Phone SearchesAdam M. GershowitzWilliam & Mary Law School, [email protected]
Copyright c 2016 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.https://scholarship.law.wm.edu/facpubs
Repository CitationGershowitz, Adam M., "The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches" (2016). FacultyPublications. 1820.https://scholarship.law.wm.edu/facpubs/1820
CELL PHONE PRIVACY IN RILEY V. CALIFORNIA ................. 594
II. AN OVERVIEW OF THE PARTICULARITY REQUIREMENT AND ITS APPLICATION TO ELECTRONIC DEVICES ................ 597
III. THE POST-RILEY WARRANT: OVERBROAD SEARCH
WARRANTS THAT ARE RARELY OVERTURNED ..................... 600 A. Courts Issue Post-Riley Warrants That
Improperly Authorize a Search of Every
Piece of Data on the Phone ..................................... 601 1. Incorrectly Decided “All Data” Cases .......... 602 2. Flawed “Any And All Data” Warrants
Saved by the Good Faith Exception ............. 606 B. Warrants Authorizing Searches of Data
for Which There Is No Probable Cause ................... 609 1. Incorrectly Decided “Laundry List”
Saved by the Good Faith Exception ............. 612
IV. EX ANTE SEARCH PROTOCOLS CAN HELP TO EFFECTUATE THE PARTICULARITY GUARANTEE .................. 614 A. Courts Are Typically Reluctant to
Impose Search Protocols ......................................... 615 B. Ex Ante Search Protocols After Riley ...................... 617 C. Objections to Using Search
Protocols as a Solution ........................................... 621
2016] THE POST-RILEY SEARCH WARRANT 587
D. Search Protocols Limit Overuse
of the Good Faith Exception ................................... 628
V. RE-FRAMING THE INQUIRY IN “SIMPLE” CELL PHONE CASES: LIMITATIONS ON WHERE, AS
OPPOSED TO HOW, TO SEARCH ........................................... 629 A. Although Cell Phones Are Mini-Computers,
They Are Often Used to Commit Different
and Simpler Types of Offenses than Crimes
Committed With Traditional Computers ................ 630 B. Restricting Where on the Cell Phone
Police Can Search .................................................. 633
144. Search warrants in pre-Riley cases have also authorized searches for photos and video
evidence based on conclusory statements from officers that drug dealers sometimes photograph
contraband. See, e.g., United States v. Gorny, No. 13–70, 2014 WL 2860637, at *2 (W.D. Pa. June
23, 2014) (authorizing search warrant for, inter alia, “any photos or videos” based on officers’
testimony that “[y]our affiants have seen incidents where individuals involved with illegal
narcotics have taken cell phone photographs and videos of illegal narcotics”).
145. No. 13-64-RGA, 2015 WL 3485647 (D. Del. May 29, 2015).
2016] THE POST-RILEY SEARCH WARRANT 613
entire contents of the cell phone.”146 Moreover, while the warrant listed
some appropriate categories of evidence for officers to search for, it
simply listed the types of applications without any reference to how
specific evidence connected to the alleged firearms offense could be
found in those applications. The warrant therefore in no way guided or
limited the discretion of the officer who executed it.147 The district judge
thus found it to be an invalid general warrant.148 Even though the
warrant was invalid, the court declined to suppress an incriminating
text message found on the phone because the officers acted in good
faith.149 The court explained that “I do not think that most federal
‘street agents’ would know on their own whether the warrant was
general. Thus, I do not think the officer’s reliance upon the warrant was
so unreasonable as to conclude that there was a lack of good faith in so
relying.”150 Put differently, the district judge recognized that electronic
search warrants can be exceedingly broad and authorize law
enforcement officers to search far more expansively than the Fourth
Amendment should authorize. At the same time, because electronic
warrants are complicated, almost all searches will be upheld because
the complexity of proper drafting means that most law enforcement
officers would not understand any particularity problems and would act
in good faith.
Not surprisingly, a sizeable number of post-Riley courts have
turned to the good faith exception in upholding cell phone search
warrants.151
* * *
146. Id. at *4.
147. See id. (noting the lack of search limitations).
148. See id. at *5 (stating that “the subject warrant is a general warrant”).
149. See id. (concluding that good faith existed).
150. Id.
151. See People v. Rackley, No. VCR 213747, 2015 WL 1862880, at *7–8 (Cal. App. Dep’t
Super. Ct. Apr. 29, 2015) (upholding pre-Riley search warrant to search cell phone for evidence of
robbery and noting that even if warrant were defective, police relied on it in good faith); United
States v. Jefferson, No. 14-20119, 2015 WL 3576035, at *6 (E.D. Mich. June 5, 2015) (finding
enough evidence linking cell phone to criminal activity for the agent “to rely in good faith on it”);
Moore v. State, 160 So. 3d 728, 733–34 (Miss. Ct. App. 2015) (finding investigator acted
reasonably); United States v. Brewer, No. 1:13-CR-13-03, 2015 WL 2250150, at *5 (M.D. Pa. May
12, 2015) (concluding that “even if the nexus is insufficient, a reasonably well-trained officer would
not have known that the warrant was illegal”); United States v. Willis, No. 13-CR-6013G, 2014
WL 6791386, at *18 (W.D.N.Y. Nov. 5, 2014) (finding no evidence that the searching officers did
not rely on the warrant in good faith); see also supra notes 119–127 and accompanying text
(discussing State v. Henderson and United States v. Russian).
614 VANDERBILT LAW REVIEW [Vol. 69:3:585
Although a unanimous Supreme Court said in Riley that the
approach to cell phone privacy was “simple—get a warrant,”152 the cases
in Parts III.A and III.B above demonstrate how the warrant process is
not simple at all. In the cases described above, police procured a
warrant, but they were still able to rummage through mountains of
unrelated data that magistrates should have foreclosed by enforcing the
particularity requirement. There are undoubtedly many more cases
than those outlined above. Reported decisions about cell phone searches
are likely only a fraction of the total number of search warrants. Many
cell phone search warrants are sealed153 and never see the light of day.
In other cases, police execute search warrants but find no evidence,
giving the suspect no reason to file a suppression motion. And while
some defendants may enter conditional guilty pleas that enable them
to subsequently challenge the cell phone search on appeal, other cases
are likely resolved completely by quiet plea bargains that leave no paper
trail of judicial decisions. In short, the flawed post-Riley search
warrants in Parts III.A and III.B are probably only the tip of the
iceberg.154
In light of the significant problems with post-Riley search
warrants, Parts IV and V below propose two solutions.
IV. EX ANTE SEARCH PROTOCOLS CAN HELP TO EFFECTUATE THE
PARTICULARITY GUARANTEE
Over the last few years, courts and scholars have begun debating
whether search protocols—ex ante regulations and restrictions on how
police should execute search warrants—should be imposed in computer
and cell phone search warrants. Although the law and policy questions
are complicated, they largely boil down to whether magistrates should
impose tight restrictions up front so that officers will be guided from the
152. Riley v. California, 134 S. Ct. 2473, 2495 (2014).
153. I am grateful to federal magistrate Judge Tommy Miller for making this point to me.
154. Of course, there are some very well-drafted post-Riley search warrants. Such decisions
unfortunately reinforce the flaws in the decisions highlighted in Sections III.A and III.B above.
For example, in Commonwealth v. Dougalewicz, 113 A.3d 817 (Pa. Super. Ct. Mar. 30, 2015), police
had probable cause to believe a coach was having a sexual relationship with a thirteen-year-old
member of the team. Because the evidence indicated that the coach and victim texted, called, and
exchanged pictures by cell phone, the warrant authorized a search of “[a]ny and all text messages,
picture mail and phone calls . . . in regards to alleged sexual misconduct with a 14[-]year[-]old
female by Dougalewicz.” Id. at 821. This warrant appears sufficiently narrow and particular. It
identifies the items for which there are probable cause, authorizes a search of those items only,
and instructs the police about how the items link to the specific offense of sexual misconduct with
a minor.
2016] THE POST-RILEY SEARCH WARRANT 615
outset, rather than litigating the reasonableness of an electronic search
after it has already happened.
The Supreme Court made a passing reference to search protocols
in Riley,155 but in no way advanced, much less settled, the debate about
the wisdom and constitutionality of ex ante restrictions. Thus, as
defendants in post-Riley cases increasingly move to suppress evidence
because of the absence of ex ante search protocols, magistrates find
themselves struggling with whether to require ex ante restrictions of
electronic searches. This Part explains courts’ reluctance to impose
search protocols and the Department of Justice’s fierce opposition to
them. It then assesses whether they are constitutional, and their
increasing use by magistrate judges. Finally, this Part challenges the
conventional wisdom that ex ante search protocols are unwise and
impractical.
A. Courts Are Typically Reluctant to Impose Search Protocols
When magistrates issue a warrant, they specify the places to be
searched and the items to be seized. For the most part, however, courts
have not imposed restrictions on how the warrant is to be executed. As
the Supreme Court explained in Dalia v. United States, “it is generally
left to the discretion of the executing officers to determine the details of
how best to proceed with the performance of a search authorized by
warrant.”156 Or, as the First Circuit put it more succinctly, “[t]he
warrant process is primarily concerned with identifying what may be
searched or seized—not how.”157
Defendants who have had their computers searched have argued
that the rules should be different in electronic search cases. These
defendants maintain that because of the sheer amount of information
computers hold that is unrelated to the crime being investigated, the
warrants should include search protocols specifying what steps the
officers should take in executing the warrant. For example, a
magistrate might restrict how long police can view electronic data. Or
the judge might specify the particular steps an officer may take in
examining the data.
155. In response to the government’s assertion that it could develop protocols if the Court
allowed warrantless searches incident to arrest, the Court remarked: “Probably a good idea, but
the Founders did not fight a revolution to gain the right to government agency protocols.” Riley,
134 S. Ct. at 2491.
156. 441 U.S. 238, 257 (1979).
157. United States v. Upham, 168 F.3d 532, 537 (1st Cir. 1999).
616 VANDERBILT LAW REVIEW [Vol. 69:3:585
Not surprisingly, the Department of Justice has strongly
resisted the introduction of search protocols that would limit how police
search computers in executing a warrant.158 The Justice Department
describes such restrictions as “burdensome,” “unnecessary,” and
“inconsistent with Supreme Court precedent.”159 In particular, the
Justice Department has long argued against any restriction that limits
officers to searching for particular keywords in files because not all
types of files—PDF’s are a good example—are searchable by keyword.160
For the most part, courts have agreed with the Department of
Justice and have declined to impose protocols specifying how a search
warrant for a computer should be executed.161 For instance, in United
States v. Burgess, a judge issued a warrant to search a laptop computer
and two external hard drives for, inter alia, “photographs of
coconspirators or photographs of illegal narcotics.”162 When the
subsequent search revealed child pornography, Burgess moved to
suppress. The Tenth Circuit rejected any suggestion of a search
protocol, explaining that “this Court has never required warrants to
contain a particularized computer search strategy.”163 The court
explained that:
158. See U.S. DEP’T OF JUSTICE, supra note 27, at 79–83.
159. Id. at 79–80.
160. See id. at 79.
161. See, e.g., United States v. Khanani, 502 F.3d 1281, 1290 (11th Cir. 2007) (rejecting
suppression motion highlighting lack of search protocols); United States v. Brooks, 427 F.3d 1246,
1251 (10th Cir. 2005) (“This court has never required warrants to contain a particularized
computer search strategy.”); Upham, 168 F.3d at 537 (“The warrant process is primarily concerned
with identifying what may be searched or seized—not how . . . .”); United States v. Jackson, No.
3:14-CR-1 CAR, 2015 WL 2236400, at *14 (M.D. Ga. May 12, 2015) (“[A]n electronic search
strategy [for a cell phone] is not necessarily required to be included in the affidavit”); United States
v. Lustyik, 57 F. Supp. 3d 213, 229 (S.D.N.Y. 2014) (noting in computer and cell phone search case
that the Second Circuit does not require search protocols); United States v. Vilar, No.
S305CR621KMK, 2007 WL 1075041, at *37 (S.D.N.Y. Apr. 4, 2007) (“[W]hile the warrant must
state with particularity the materials to be seized from a computer, the warrant need not specify
how the computers will be searched.”); United States v. Cartier, No. 2:06-cr-73, 2007 WL 319648,
at *3 (D.N.D. Jan. 30, 2007) (“[T]he warrant is not defective because it did not include a computer
search methodology.”); United States v. Shinderman, No. CRIM. 05-67-P-H, 2006 WL 522105, at
*19 (D. Maine Mar. 2, 2006) (explaining that “there is no Fourth Amendment requirement that
search warrants spell out the parameters of computer searches where the warrant provides
particularity as to what is being searched for”).
162. 576 F.3d 1078, 1091 (10th Cir. 2009). The officer’s affidavit stated, “Based upon training
and experience, your Affiant [Schmitt] knows that persons involved in trafficking or the use of
narcotics often keep photographs of coconspirators or photographs of illegal narcotics in their
vehicle.” Id. at 1083. The judge and appeals court accepted this seemingly questionable statement
in the abstract and without any indication of why it would be true in this particular case.
163. Id. at 1092.
2016] THE POST-RILEY SEARCH WARRANT 617
It is unrealistic to expect a warrant to prospectively restrict the scope of a search by
directory, filename or extension or attempt to structure search methods – that process
must remain dynamic . . . [I]t is folly for a search warrant to attempt to structure the
mechanics of the search and a warrant imposing such limits would unduly restrict
legitimate search objectives. One would not ordinarily expect a warrant to search filing
cabinets for evidence of drug activity to prospectively restrict the search to “file cabinets
in the basement” or to file folders labeled “Meth Lab” or “Customers.” And there is no
reason to so limit computer searches.164
Some pre-Riley cases imposed search protocols,165 yet for the most part
courts have been very wary. As Part IV.B explains however, that
dynamic is slowly changing in post-Riley cell phone cases.
B. Ex Ante Search Protocols After Riley
Since Riley, most courts have continued to reject the idea that
search protocols are required. For instance, in a 2015 case in San Diego,
the suspect contended that a search warrant for his cell phone failed
the particularity requirement and was overbroad because it “did not
identify why a full-blown forensic search was justified, did not limit the
search to newer data, did not provide a method for segregating
unreviewable data, [and] did not provide specific guidance on how to
determine which data had a nexus to the crime.”166 The federal court
rejected this claim, however, because “[a]lthough it may have been
better if the warrant had included a search protocol that minimized
unnecessary intrusion into Defendant’s personal data,” precedent did
not require such protocols.167 Other post-Riley courts have reached the
same conclusion and refused to require search protocols.168
There are exceptions however, and the number of cases allowing
such protocols is growing. The strongest voice for search protocols has
been magistrate Judge David Waxse of the United States District Court
for the District of Kansas. In a series of recent opinions,169 Judge Waxse
164. Id. at 1093–94.
165. The most high profile decision was the Ninth Circuit’s initial en banc decision in United
States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc). For an overview
of the complicated procedural history and the main decisions in Comprehensive Drug Testing, see
Thomas J. Plumridge, Note, The Fourth Amendment in a Digital World: Decoding United States
v. Comprehensive Drug Testing, Inc., 29 QUINNIPIAC L. REV. 197 (2011).
166. United States v. Garcia-Alvarez, No. 14-cr-0621, JM, 2015 WL 777411, at *4 (S.D. Cal.
Feb. 24, 2015).
167. Id. at *5.
168. See, e.g., United States v. Jefferson, No. 14-20119, 2015 WL 3576035, at *6 (E.D. Mich.
June 5, 2015); United States v. Gatson, No. 13-705, 2014 WL 7182275, at *21 (D.N.J. Dec. 16,
2014).
169. For an extremely thorough overview of the search protocol rulings by Judge Waxse and
another prominent federal judge, see William Clark, Note, Protecting the Privacies of Life: Riley v.
618 VANDERBILT LAW REVIEW [Vol. 69:3:585
has denied federal agents’ requests for cell phone search warrants
because the agents either did not provide a search protocol170 or
provided one that was insufficiently general.171
In the most prominent decision—In Re the Matter of Cellular
Telephones Within Evidence Facility Drug Enforcement
Administration—Judge Waxse declined to grant the DEA a search
warrant for “names, addresses, telephone numbers, text messages,
digital images, video depictions, or other identification data” on a group
of cell phones.172 Stressing the Court’s language in Riley, Judge Waxse
focused on how digital searches are different than those in the tangible
world because of the sheer amount of data held on electronic devices.
He maintained that requiring the government to submit a search
protocol is “squarely aimed at satisfying the particularity requirement
of the Fourth Amendment.”173 A search protocol, in Judge Waxse’s view,
“helps the court to determine if the proposed warrant satisfies the
requirements of the Fourth Amendment” by ensuring that the warrant
imposes sufficient “boundaries and limits.”174 The protocol balances “an
individual’s right to privacy and the government’s ability to efficiently
and effectively investigate crimes.”175 Judge Waxse recognized that
ordinarily judges evaluate the execution of warrants after the fact,
rather than imposing restrictions ex ante. Nevertheless, he argued that
neither the text of the Constitution nor prior Supreme Court precedent
“precludes a magistrate from imposing ex ante warrant conditions to
further constitutional objectives such as particularity in a warrant.”176
Although Judge Waxse has been the most vocal proponent of
search protocols, a number of other courts have also demanded that law
enforcement submit proposed search protocols in computer and cell
phone cases. In the Ninth Circuit, the protocol cases stem from the
appellate court’s well-known decision in United States v.
Comprehensive Drug Testing, Inc., which involved a search of computer
California, the Fourth Amendment’s Particularity Requirement and Search Protocols for Cell Phone
Search Warrants, 56 B.C. L. REV. 1981 (2015).
170. See In re Search of Three Cellphones and One Micro-SD Card, No. 14-MJ-8013-DJW,
2014 WL 3845157, at *2 (D. Kan. Aug. 4, 2014) (denying the government’s search warrant for
lacking a search protocol).
171. See In re Search of Nextel Cellular Telephone, No. 14-MJ-8005-DJW, 2014 WL 2898262,
at *14 (D. Kan. June 26, 2014) (denying the government’s search warrant for insufficient
particularity).
172. No. 14-MJ-8017-DJW, 2014 WL 7793690, at *1 (D. Kan. Dec. 30, 2014).
173. Id. at *8 (citations omitted).
174. Id. at *7.
175. Id. at *8.
176. Id. at *6.
2016] THE POST-RILEY SEARCH WARRANT 619
files for evidence of steroid use in Major League Baseball.177 In an early
iteration of the case, the Ninth Circuit majority imposed search
protocols for the execution of computer warrants.178 However, about a
year later the opinion was withdrawn and replaced with a new opinion.
This time, the search protocols were not in the majority opinion but
instead were relegated to “guidance” in Chief Judge Kozinski’s
concurring opinion.179 Subsequent Ninth Circuit precedent has
continued to recognize the utility of search protocols. The court has
recommended that “judges may consider such protocols or a variation
on those protocols as appropriate in electronic searches”—but the court
has declined to mandate them.180
Ninth Circuit precedent clearly seems to make search protocols
optional. Yet, at least one magistrate in a post-Riley cell phone case has
relied on the circuit court’s Comprehensive Drug Testing opinion to
require a search protocol before issuing a search warrant.181 After
explaining the Comprehensive Drug Testing opinion and the importance
of the Fourth Amendment’s particularity requirement, Magistrate
Judge Peggy Leen stated:
The court will not approve a search warrant for electronically stored information that
does not contain an appropriate protocol delineating what procedures will be followed to
address these Fourth Amendment issues. A protocol for forensic review of a device that
stores data electronically must make reasonable efforts to use methods and procedures
that will locate and expose those categories of files, documents, or other electronically
stored information that are identified with particularity in the warrant, while minimizing
exposure or examination of irrelevant, privileged, or confidential files to the extent
reasonably practicable.182
A federal magistrate in Washington, D.C. took a nearly identical
position only a few months before the Riley decision. Judge John
Facciola demanded a search protocol before issuing a warrant to search
multiple electronic devices, including a cell phone.183 When the
government responded with an affidavit indicating simply that a
computer forensic specialist would image the files and search them,
Judge Facciola again denied the warrant. He explained that “[n]o
177. 621 F.3d 1162 (9th Cir. 2010) (en banc).
178. See United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 1006 (9th Cir.
2009) (en banc).
179. Comprehensive Drug Testing, Inc., 621 F.3d at 1179–80 (Kozinski, C.J., concurring).
180. United States v. Schesso, 730 F.3d 1040, 1050 (9th Cir. 2013).
181. See United States v. Phua, No. 2:14-cr-00249-APG-PAL, 2015 WL 1281603, at *6–7 (D.
Nev. Mar. 20, 2015).
182. Id. at *7.
183. In re Search of ODYS LOOX Plus Tablet Serial Number 4707213703415, 28 F. Supp. 3d
40, 46 (D.D.C. 2014).
620 VANDERBILT LAW REVIEW [Vol. 69:3:585
sophisticated search should occur without a detailed explanation of the
methods that will be used, even if the explanation is a technical one,
and no search protocol will be deemed adequate without such an
explanation.”184
Unlike many judicial officers, Judge Facciola showed no fear of
understanding complicated electronic search methodology. In denying
a search warrant in a subsequent opinion he noted that the
“government should not be afraid to use terms like ‘MD5 hash values,’
‘metadata,’ ‘registry,’ ‘write blocking’ and ‘status marker,’ nor should it
shy away from explaining what kinds of third party software are used
and how they are used to search for particular data.”185 Judge Facciola
was clear that he was “not dictating that particular terms or search
methods should be used,” but rather that the government must offer its
own search methodology in detail so that the court can “conclude that
the government is making a genuine effort to limit itself to a
particularized search.”186
The Vermont Supreme Court—although not delving into the
same level of technological sophistication as Judge Facciola—went
further in a computer search warrant case and upheld search protocols
established by the court itself. In the case, police detectives requested a
warrant to search an address and seize any evidence, including “any
computers or other electronic medium” for evidence of identity theft.187
A judge granted the warrant but imposed ten conditions, including that
the government forego use of the plain view doctrine, that different
officers search the computer files than those handling the case, that the
executing officers forego use of hashing tools without specific
authorization, and limiting the search protocol to methods designed to
uncover only information for which the government had probable
cause.188 The State maintained that the judge lacked the authority to
impose such ex ante limitations on how law enforcement will conduct
its search, and it requested that the Vermont Supreme Court strike
them from the warrant.189 Although the Vermont Supreme Court did
strike the clause forbidding officers from relying on the plain view
184. Id.
185. In re Search of Apple iPhone, IMEI 013888003738427, 31 F. Supp. 3d 159, 168 (D.D.C.
2014).
186. Id.
187. In re Application for Search Warrant, 71 A.3d 1158, 1161 (Vt. 2012).
188. See id. at 1162–63.
189. See id. at 1163–65.
2016] THE POST-RILEY SEARCH WARRANT 621
doctrine,190 it otherwise completely rejected the State’s challenge to ex
ante search protocols.191 The Court held that, in the abstract, an ex ante
search protocol is acceptable as a way to ensure the Fourth
Amendment’s particularity guarantee.192 The court drew analogies to
the minimization requirement in wiretapping cases and limits on body
cavity searches, and found that ex ante restrictions could not be
categorically prohibited.193 Indeed, even the dissenting justices (who
objected to certain conditions of the protocols as going too far) began
their opinion by noting that “[n]othing in the Fourth Amendment
precludes a magistrate from imposing ex ante warrant conditions to
further constitutional objectives such as particularity in a warrant.”194
In sum, while most courts have declined to impose ex ante search
protocols, a small number of courts have turned to protocols to enforce
the Fourth Amendment’s particularity requirement. The number of
cases seems to be growing (albeit slowly) since the Riley decision.
C. Objections to Using Search Protocols as a Solution
There are a few objections to relying on search protocols to cabin
search warrants for cell phones. First, ex ante regulations on cell phone
searches would be a different approach than courts take with tangible
evidence. The Supreme Court has been very reluctant to impose ex ante
limits on the execution of warrants for physical evidence and, as noted
above, most lower courts have declined to alter that approach for
190. In an effort to limit the privacy intrusion on electronic data, some academic
commentators have suggested eliminating prosecutors’ ability to rely on the plain view doctrine in
digital searches. See James Saylor, Note, Computers As Castles: Preventing the Plain View Doctrine
From Becoming a Vehicle for Overbroad Digital Searches, 79 FORDHAM L. REV. 2809, 2854–55
(2011) (arguing that plain view doctrine should be limited to cases in which the evidence was
reasonably related to what was originally sought by law enforcement); Eric Yeager, Note, Looking
for Trouble: An Exploration of How To Regulate Digital Searches, 66 VAND. L. REV. 685, 716–20
(2013) (suggesting eliminating the doctrine for digital searches). Recently, Professor Kerr has
advocated a modified approach to banning the plain view doctrine. See Kerr, supra note 69.
Unfortunately, while limiting or abolishing the plain view doctrine for digital searches may result
in suppression of evidence, it does not solve the root problem of privacy invasion. Millions of cell
phones likely contain private but non-incriminating data—naked photographs or sexually explicit
personal videos are the most graphic examples—that individuals would like to prevent
government actors from observing. Limiting the plain view doctrine does nothing to the
government from viewing this data. Restricting the plain view doctrine does not prevent privacy
invasion; it only prevents data from being admitted into evidence.
191. See In re Search Warrant, 71 A.3d at 1170 (“We conclude that ex ante instructions are
sometimes acceptable mechanisms for ensuring the particularity of a search.”).
192. See id.
193. See id. at 1170–71.
194. Id. at 1186 (Burgess, J., concurring and dissenting).
622 VANDERBILT LAW REVIEW [Vol. 69:3:585
computer searches. Second, and related, there is an argument that
magistrates lack constitutional authority to impose protocols. Third,
relying on ex ante protocols would stunt the growth of reasonableness
doctrine because courts would not be called on to flesh out in judicial
decisions, after the fact, whether cell phone warrants were executed
properly. Fourth, and perhaps most importantly, imposing search
protocols on cell phones would be quite complicated and beyond the
expertise of most judges.
The first three objections to search protocols can be dispensed
with fairly easily. The fourth objection—judicial competence—is more
compelling but ultimately should fail as well. I take the four objections
in turn.
First, while it is true that ex ante restrictions on search
warrants have been rare in the universe of tangible searches, we are
not operating in the tangible world for cell phone searches. The Court’s
decision in Riley signaled that electronic searches are different and that
courts must occasionally apply different doctrinal approaches to
electronic equipment.195 If it were otherwise, the Supreme Court would
not have forbidden warrantless searches incident to arrest of cell
phones in Riley.
Second, and relatedly, while Professor Orin Kerr has argued
that magistrates lack constitutional authority to impose ex ante search
protocols, his argument (unlike his other excellent work in this area) is
not compelling. Professor Kerr maintains that four Supreme Court
decisions—LoJi Sales v. New York, Dalia v. United States, United
States v. Grubbs, and Richards v. Wisconsin—tie together to foreclose
ex ante search protocols.196 Yet, as Professor Paul Ohm noted in
response to Professor Kerr, none of those cases directly addresses
magistrates’ authority to impose ex ante conditions on electronic
searches.197
The LoJi case involved a magistrate who actually sat at the
scene of a physical evidence search nearly forty years ago and was
considerably more involved in the execution of the warrant than simply
specifying some execution instructions on a piece of paper.198 In Dalia,
195. Professor Kerr has recently suggested that there will be “Riley moments” in which the
Supreme Court will have to recognize that “the facts of computer searches differ so greatly from
the facts of physical searches that new rules are required.” Kerr, supra note 69, at 12. The rules
governing search warrants could be such a moment.
196. See Kerr, supra note 28, at 1261–71 (concluding that, taken together, these four cases
preclude ex ante restrictions on the execution of computer warrants).
197. See Ohm, supra note 29, at *2–4 (distinguishing the cases relied on by Professor Kerr).
198. 442 U.S. 319 (1979).
2016] THE POST-RILEY SEARCH WARRANT 623
the Court dealt only with whether a restriction on executing a physical
evidence warrant was required, not whether it was permitted.199 The
Richards decision—about the knock and announce rule—implicated the
reasonableness clause, not the particularity requirement that would be
at issue in search protocols.200 Finally, the Grubbs case involved an
anticipatory search warrant for a tangible package (video tapes of child
pornography), not an electronic device.201 And while Grubbs does
contain some language about the particularity requirement, the case
really only concerned whether the police should have left a copy of the
affidavit with persons present at the location of the search.202 As
Professor Ohm concisely explained, Grubbs is a “short, terse decision
which we should try to avoid reading too much into.”203 In short, while
it is possible that the Court may one day squarely address judicial
authority to impose search protocols, at present there does not appear
to be any kind of precedent that would foreclose them. Thus, there
seems to be little evidence for claiming ex ante search protocols are
unconstitutional.
The third objection to search protocols is that ex ante restrictions
on the execution of search warrants would stifle the natural
development of common law reasonableness doctrine in computer cases.
Professor Kerr argued in 2010 that “ex ante restrictions impair the
ability of appellate courts and the Supreme Court to develop the law of
unreasonable searches and seizures in the usual case-by-case
fashion.”204 But it is not clear why this should be so. Search protocols
will not stop law enforcement from executing warrants and finding
evidence. In the face of incriminating evidence, defendants will question
whether forensic examiners complied with those search protocols.
These suppression motions will result in written district court opinions,
and those decisions will be appealed to state and federal appellate
courts. As such, a body of law will surely develop.
Additionally, even if it is apparent that law enforcement
complied with the protocols, that will simply incentivize defendants to
argue that the Fourth Amendment’s probable cause, particularity, and
reasonableness provisions guarantee more protection than the ex ante
search protocols provided. Thus, appellate courts will still be called on
199. 441 U.S. 238 (1979).
200. 520 U.S. 385 (1997).
201. 547 U.S. 90 (2006).
202. See id. at 94.
203. Ohm, supra note 29, at 9.
204. Kerr, supra note 28, at 1278.
624 VANDERBILT LAW REVIEW [Vol. 69:3:585
to assess the reasonableness of law enforcement’s execution of
electronic searches.205
The final objection to search protocols—that judges simply are
not equipped to impose them—is the most persuasive. Every cell phone
search will seek slightly different evidence. And there are many
different types of cell phones.206 At the same time, judges are not the
most technically savvy group.207 As one court has noted, computer
searches “can be as much an art as a science.”208 Preordaining in
advance the exact steps that forensic examiners will have to take is a
tall order and one that may end badly. As Professor Kerr has explained:
Judges are smart people, but they do not have crystal balls that let them predict the
number and type of computers a suspect may have, the law enforcement priority of the
particular case, the forensic expertise and toolkit of the examiner who will work on that
case, whether the suspect has tried to hide evidence, and if so, how well, and what
evidence or contraband the seized computers may contain.209
All of this is true, of course, yet Professor Kerr’s concerns—first
articulated a decade ago—seem less significant with each passing year.
First, some judges—like Judge Facciola—appear quite
technologically savvy and capable of dealing with sophisticated search
protocols.210 Moreover, even if judges do lack technological
sophistication, many will have young law clerks who do possess that
knowledge.211
Second, judges who lack the necessary knowledge can simply
require that law enforcement officers and prosecutors submit proposed
205. By way of comparison, a few magistrate judges have rejected the government’s proposed
search protocols because they were insufficiently detailed. See In re Search of Nextel Cellular
Telephone, No. 14-MJ-8005-DJW, 2014 WL 2898262, at *11–13 (D. Kan. June 26, 2014)
(invalidating the government’s cell phone search warrant for lack of particularity); In re Search of
Apple iPhone, IMEI 013888003738427, 31 F. Supp. 3d 159, 168 (D.D.C. 2014) (requiring a more
particularized search protocol in the government’s warrant). Appellate courts could just as easily
find the search protocols imposed by lower court judges to be inadequate.
206. See Andrew Cunningham, The State of Smartphones in 2014: Ars Technica’s Ultimate
Guide, ARS TECHNICA (Dec. 21, 2014), http://arstechnica.com/gadgets/2014/12/the-state-of-
smartphones-in-2014-ars-technicas-ultimate-guide/ [perma.cc/QRY9-ETVR] (describing two dozen
of the leading phones).
207. See Kerr, supra note 43, at 575 (“[M]agistrate judges are poorly equipped to evaluate
whether a particular search protocol is the fastest and most targeted way of locating evidence
stored on a hard drive.”).
208. United States v. Brooks, 427 F.3d 1246, 1252 (10th Cir. 2005).
209. Kerr, supra note 28, at 1282.
210. See supra notes 184–187 and accompanying text.
211. See Albert Yoon, Law Clerks and the Institutional Design of the Federal Judiciary, 98
MARQ. L. REV. 131, 138 (2014) (discussing data indicating that more than seventy percent of
federal law clerks are under the age of thirty).
2016] THE POST-RILEY SEARCH WARRANT 625
search protocols.212 For instance, Judge David Waxse has required
federal agents to submit proposed protocols in multiple cases.213 The
Justice Department is fully capable of proposing such protocols. As
Professor Ohm explained, “[t]he FBI and other law enforcement
agencies are resourceful organizations full of industrious, creative,
intelligent, and hard-working agents, who are dedicated to finding
evidence of crime.”214 Experts in the Department of Justice will surely
identify a series of standard practices for cell phone searches to satisfy
magistrates like Judge Waxse who request protocol submissions. And
while it may be harder for state judges and local law enforcement
agencies to identify the proper search protocols, they can simply
piggyback off of federal efforts. By point of comparison, the Justice
Department produces an invaluable manual—Searching and Seizing
Computers and Obtaining Electronic Evidence in Criminal
Investigations—that keeps readers updated on digital issues in Fourth
Amendment law. Just as the Justice Department shares this manual
with the public, it could also share its cell phone search protocols with
state and local law enforcement agencies.
Third, and following directly from the first two points above,
judges are in the business of learning about new and complicated
matters. Setting aside polyglots like Judge Richard Posner, few judges
are experts on everything from CERCLA to tax law to regulatory
takings. Yet, they do not simply turn away cases because they have
little background in certain doctrinal areas. If judges can learn
complicated legal doctrine on the job, they can learn how to impose
search protocols.
Indeed, trial judges in civil cases are already regularly
confronted with the same type of complicated questions about electronic
evidence that arise in criminal cases. For instance, before federal
magistrate Judge Facciola decided that search protocols were necessary
for a cell phone search warrant in 2014,215 he addressed the very same
issue in a civil discovery dispute in 2008.216 Not surprisingly, over the
last few decades, electronic discovery in civil cases has exploded.217
212. Lawyers, of course, regularly draft documents from warrants to discovery orders that
they ask judges to sign.
213. See supra note 172 and accompanying text.
214. Ohm, supra note 29, at 12.
215. See supra notes 184–187 and accompanying text (offering a full discussion of Judge
Facciola’s decision).
216. See Equity Analytics, LLC v. Lundin, 248 F.R.D. 331, 331–32 (D.D.C. 2008) (assessing
discovery questions related to the defendant’s computer and email content).
217. See George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System
Adapt?, 13 RICH. J.L. & TECH. 10, 10–13 (2007) (describing the exponential rise in information
626 VANDERBILT LAW REVIEW [Vol. 69:3:585
Large litigations often involve Fortune 500 companies with massive
databases and an incredible array of electronic records.218 When trial
judges enter pre-trial discovery orders they certainly confront the
question of what types of data and documents will have to be disclosed
during the discovery process. The judges do not simply throw up their
hands and say it is impossible to separate responsive information from
that which is irrelevant and non-discoverable.219 To the contrary, the
Federal Rules of Civil Procedure specifically call on judges to rule on
motions to compel the production of electronically stored information
that parties have failed to produce.220 Put simply, judges in civil cases
do not order enormous companies such as Microsoft or Pfizer to turn
over all of their electronic files and tell them that all discovery disputes
will be worked out ex post. Rather, based on information from the
parties, trial judges decide many discovery matters—such as motions
to compel221 and wide-ranging discovery plans222—early in the case. The
comparison to ex ante search protocols under the Fourth Amendment
is therefore quite apt.
available due to advances in technology and the information-gathering burdens related to
litigation).
218. See Nicholas Barry, Note, Man Versus Machine Review: The Showdown Between Hordes
of Discovery Lawyers and a Computer-Utilizing Predictive-Coding Technology, 15 VAND. J. ENT. &
TECH. L. 343, 347 (2013) (“[E]-discovery has grown exponentially and now includes, inter alia,
emails, word-processing files, spreadsheets, databases, video files, MP3 files, and virtually every
other file now stored on computers and other electronic devices (such as PDAs, cell phones, flash
drives, DVDs, etc.”).
219. Indeed, the 2006 e-discovery amendments to the Federal Rules of Civil Procedure
specifically require judges to engage with electronically stored information during the discovery
process. See Rachel K. Alexander, E-Discovery Practice, Theory, and Precedent: Finding the Right
Pond, Lure, and Lines Without Going on a Fishing Expedition, 56 S.D. L. REV. 25, 30 (2011)
(discussing the discovery rules as they relate to e-discovery).
220. See Jason Fliegel & Robert Entwisle, Electronic Discovery in Large Organizations, 15
RICH. J.L. & TECH., no. 3, 2009, at 1, 5:
The non-producing party may move to compel production of information from sources designated as “not reasonably accessible,” and if it does so, “the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C).”
221. See, e.g., Victor Stanley, Inc. v. Creative Pipe, Inc. 250 F.R.D. 251, 253–54 (D. Md. 2008)
(deciding motion to compel electronically stored documents).
222. See Millber LLP & Hausfeld LLP, E-Discovery Today: The Fault Lies Not in Our Rules,
4 FED. CTS. L. REV. 131, 157 (2011) (“A survey of recent cases illustrates the myriad of approaches
available to judges under the current Rules to control the scope of e-discovery while permitting the
parties to obtain relevant evidence. Courts can parse and, if necessary, alter e-discovery requests
to strike a fair balance.”).
2016] THE POST-RILEY SEARCH WARRANT 627
Fourth, to the extent that a judge initially imposes a search
protocol that is too narrow,223 law enforcement officers are free to return
to the judge to request a revised warrant or protocol.224 Because law
enforcement is free to seize cell phones under the Riley decision, they
will already have the phone in their possession. Accordingly, time is not
of the essence. Indeed, law enforcement officers are already taking
weeks or even months to execute cell phone search warrants.225 It
simply will not be burdensome if officers occasionally have to return to
magistrates to ask them to alter the search protocol.226
Fifth, and related to the extent magistrates or district judges
impose unduly restrictive protocols and later refuse to alter them,
prosecutors can turn to higher level courts for search warrants.227
Double jeopardy, of course, does not prevent prosecutors from
approaching another judge after a search warrant was denied because
jeopardy will not have attached.228
Over three years ago, one writer observed that “the widespread
use of search-protocol restrictions is inevitable.”229 Since then,
magistrates have increasingly considered the wisdom of search
protocols and the Department of Justice has begun submitting protocols
223. To be sure, some search protocols can be too restrictive. As one expert explained, “[c]locks
can be wrong, dates can be changed, filenames intentionally misnamed. Keyword searches are an
important tool, but they are imperfect.” Josh Goldfoot, The Physical Container and the Fourth
Amendment, 16 BERKELEY J. CRIM. L. 112, 138 (2011); see also United States v. Burgess, 576 F.3d
1078, 1093 (10th Cir. 2009) (“[I]llegal activity may not be advertised even in the privacy of one's
personal computer—it could well be coded or otherwise disguised.”).
224. See Athul K. Acharya, Note, Semantic Searches, 63 DUKE L.J. 393, 425 (2013) (noting
that officers are always free to seek a second warrant).
225. See United States v. Phua, Nos. 2:14-cr-00249APG-PAL, 2015 WL 1281603, at *2 (D.
Nev. Mar. 20, 2015) (explaining that officials needed assistance from Apple to extract data from
cell phones and that “Apple advised it would take approximately nine months to extract data from
the devices”).
226. Additionally, although this is nothing to applaud, in large jurisdictions law enforcement
officers can simply go magistrate shopping. If a judge imposes flawed, overly restrictive protocols,
the officers will stop approaching that judge and will turn to another judge. See Abraham S.
Goldstein, The Search Warrant, the Magistrate, and Judicial Review, 62 N.Y.U. L. REV. 1173, 1183
(1987) (“[T]he police often engaged in ‘magistrate shopping’ for judges who would give only minimal
scrutiny to the application.”).
227. See, e.g., TEX. CODE CRIM. PROC. 18.01 (explaining that a search warrant can be issued
by not only municipal, county, and district judges but also by “a judge of the Court of Criminal
Appeals, including the presiding judge [or] a justice of the Supreme Court of Texas, including the
chief justice”).
228. Jeopardy attaches much later: in jury trials, when the jury is sworn; in bench trials when
the first witness is sworn. See WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 25.1(d) (5th ed.
2009).
229. Stephen Guzzi, Note, Digital Searches and the Fourth Amendment: The Interplay
Between the Plain View Doctrine and Search-Protocol Warrant Restrictions, 49 AM. CRIM. L. REV.
301, 330 (2012).
628 VANDERBILT LAW REVIEW [Vol. 69:3:585
in response to magistrate demands. While Professor Kerr is correct to
note that magistrates may not be tech savvy,230 it is also true that the
more people engage in challenging tasks the better they become at
them. Some federal magistrates sign dozens of cell phone and computer
search warrants.231 Over time, electronic search protocols may become
as routine for these magistrates as dealing with complicated areas of
tax, administrative, and bankruptcy law.
D. Search Protocols Limit Overuse of the Good Faith Exception
In addition to protecting privacy, a key attribute of ex ante
search protocols is that they would limit prosecutors’ use of the good
faith exception. At present, when officers have a search warrant for
digital evidence it is all too easy for them to turn to the good faith
exception to save an otherwise unreasonable search.
In the absence of search protocols, police typically receive no
guidance on how to execute search warrants. Following execution, the
defendant might move to suppress on the grounds that the search
proceeded too far and was thus unreasonable. The prosecutor would
then argue that even if the search was improper, the police were relying
on a valid search warrant and because electronic searching is
complicated, they executed the warrant in good faith.
Of course, in the world of physical evidence, prosecutors often
successfully invoke the good faith exception to overcome police error
and admit unlawfully seized evidence.232 Yet, there are limits in the
physical world. It would be quite hard indeed for prosecutors to convince
a court that officers acted in good faith when they opened a microwave
while executing a warrant for a stolen fifty-inch television.233
By contrast, it is quite plausible for the government to invoke
the good faith exception in digital searches when police open the wrong
file or application. As noted above, courts have regularly applied the
good faith exception to save invalid cell phone search warrants for
digital evidence.234
230. See supra notes 207–210 and accompanying text.
231. I am grateful to federal Magistrate Judge Tommy Miller for this point.
232. Indeed, courts sometimes “duck” underlying substantive Fourth Amendment inquiries
by simply turning to the good faith exception first. See Zack Bray, Comment, Appellate Review and
the Exclusionary Rule, 113 YALE L.J. 1143, 1144 (2004).
233. See, e.g., Miles v. State, 742 P.2d 1150, 1151–52 (Okla. Crim. App. 1987) (finding it
“patently beyond the scope of a warrant” and “unreasonable” for police to search envelopes,
medicine bottles, and other small containers while executing a warrant for two handguns).
234. See supra Sections III.A.2, III.B.2.
2016] THE POST-RILEY SEARCH WARRANT 629
Moreover, the good faith exception is particularly troublesome
when applied to cell phones as opposed to traditional computers.
Officers who suspect a cell phone contains incriminating evidence do
not always download the contents of the phone and conduct a forensic
analysis in a laboratory. Sometimes, the officers simply search the
phone manually. In doing so, an officer might accidentally tap the
wrong icon, open the wrong application, and come across an
incriminating photo or text message. Worse yet, officers could simply
lie and falsely say that they “accidentally” tapped the wrong icon and
stumbled upon incriminating evidence. By contrast, it is very hard for
police to plausibly say that they accidentally opened a microwave when
looking for a fifty-inch television.
Ex ante search protocols would make it much harder for
prosecutors to rely on the good faith exception.235 If a magistrate judge
specifies in advance that certain forensic tools are off limits or certain
types of data or files cannot be searched, it will take prosecutors a
considerable amount of gymnastics to convince a judge that law
enforcement should be excused from doing what was flatly prohibited
by the warrant.
V. RE-FRAMING THE INQUIRY IN “SIMPLE” CELL PHONE CASES:
LIMITATIONS ON WHERE, AS OPPOSED TO HOW, TO SEARCH
While search protocols can be beneficial when officers are
downloading and forensically analyzing the contents of a cell phone, not
all cases are so complicated. In some simple cases, police only need to
conduct a straightforward manual search of the cell phone for a
particular piece of evidence. For instance, police might be looking for a
particular video that had just been filmed on the street or they might
be searching for an incriminating text message that a drug dealer had
just sent to an informant. These cases do not require a full forensic
analysis of the phone.236 To offer a medical analogy, not all chest pain
has to be treated by open-heart surgery. If an angioplasty will clear a
heart blockage, doctors do not need to perform a quadruple bypass
operation. In simple cases, police only need to manually search the
phones. Magistrates can therefore restrict search warrants by simply
dictating which applications on the phone police can manually look
235. As one commentator explained, “[o]f all the ways in which courts might attempt to limit
the scope of digital searches, ex ante regulations that prescribe particular search protocols are
likely to be the clearest and most enforceable options.” Yeager, supra note 190, at 711.
236. See EDENS, supra note 82, at 163 (noting the possibility of manual or “fat fingered”
investigation of cell phone contents).
630 VANDERBILT LAW REVIEW [Vol. 69:3:585
through. Ex ante specification of where on the phone the police can
search, rather than how the officers must execute the search, would be
a simple and effective way to protect privacy while allowing law
enforcement to conduct a legitimate investigation.
This Part explains how criminals often use cell phones for
different and simpler types of street crimes than those they commit
with traditional computers. Although there are certainly exceptions,
criminals often turn to traditional computers for child pornography and
financial misconduct offenses, while using cell phones for drug dealing
and other street-level offenses. Because evidence of certain street
crimes is less likely to be hidden or mislabeled on cell phones, Part V.B
below argues that it is appropriate for judges in some instances to limit
cell phone warrants to particular applications on the phones.
A. Although Cell Phones Are Mini-Computers, They Are Often Used to
Commit Different and Simpler Types of Offenses than Crimes
Committed With Traditional Computers
In Riley, the Supreme Court forbid warrantless cell phone
searches because modern smartphones are like mini-computers. As
Chief Justice Roberts explained:
The term “cell phone” is itself misleading shorthand; many of these devices are in fact
minicomputers that also happen to have the capacity to be used as a telephone. They could
just as easily be called cameras, video players, rolodexes, calendars, tape recorders,
libraries, diaries, albums, televisions, maps, or newspapers.237
This, of course, is true. A smartphone can do most of the complex tasks
that computers do. The Court’s instinct to think of cell phones and
computers synonymously therefore makes sense.238
Yet, when it comes to searching for evidence, there are reasons
to think of computers and cell phones slightly differently. To over-
generalize somewhat, it is more common to see traditional computers
involved in child pornography and financial misconduct cases—crimes
where it is easy for suspects to mislabel files or bury evidence deep in
the confines of the computer.239 The obvious reason for this is that
237. Riley v. California, 134 S. Ct. 2473, 2489 (2014).
238. Indeed, commentators have begun calling for courts to extend the Riley cell phone
decision to other devices. See Tristan M. Ellis, Note, Reading Riley Broadly: A Call for a Clear
Rule Excluding All Warrantless Searches of Mobile Digital Devices Incident to Arrest, 80 BROOK.
L. REV. 463, 467–69 (2015).
239. See, e.g., United States v. Fumo, 565 F. Supp. 2d 638, 649 (E.D. Pa. 2008) (noting in a
fraud case that “because of the nature of computer files, the government may legally open and
briefly examine each file when searching a computer pursuant to a valid warrant” because “few
people keep documents of their criminal transactions in a folder marked crime records”).
2016] THE POST-RILEY SEARCH WARRANT 631
criminals are more likely to commit these crimes at home behind closed
doors and to use a larger screen to do so.
By contrast, drug dealers are much more likely to transact
business with cell phones than traditional computers. Drug distribution
is typically a street crime and drug dealers utilize the mobility of phones
and the instant communication of text messages to arrange sales of
their products.240 There are many reported decisions in which law
enforcement officials convinced courts that cell phones are recognized
tools of the drug trade.241 Indeed, prior to Riley, the Drug Enforcement
Administration specifically trained its agents to search cell phones
incident to arrest without a warrant.242 Conversely, it is practically
impossible to find courts claiming that traditional computers are used
for drug transactions.243
Of course, it would be a vast overstatement to say that police
only find evidence of drug dealing on cell phones and that child
pornography and financial fraud are always located on computers.244
But looking at the big picture, it is apparent that criminals tend to turn
to different devices for different types of crimes.245
240. See EDENS, supra note 82, at 9 (“Some crimes inherently require using mobile
communication devices. For example, it is almost impossible to be a successful narcotics dealer
without using a mobile phone.”).
241. See, e.g., United States v. Schesso, 730 F.3d 1040, 1046 (9th Cir. 2013) (rejecting
overbreadth challenge in child pornography case because the “government had no way of knowing
which or how many illicit files there might be or where they might be stored”); United States v.
Farlow, 681 F.3d 15, 19 (1st Cir. 2012) (explaining in child pornography case that “computer files
are highly manipulable. A file can be mislabeled; its extension . . . can be changed; it can actually
be converted to a different filetype”); United States v. Fisher, No. RDB-14-413, 2015 WL 1862329,
at *2 (D. Md. Apr. 22, 2015) (quoting a narcotics task force agent testifying that “through his law
enforcement training, knowledge, and experience with the drug trade, drug traffickers often
communicate about their business through cell phones”).
242. See, e.g., United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *3 (S.D. Fla. Dec.
22, 2008) (discussing cell phone searches and citing DEA agent that “it is a standard practice of
the DEA and is authorized by the DEA Legal Department”).
243. A Westlaw search for “cell phone /10 drug /10 tool” yields dozens of cases explaining that
cell phones are used by drug dealers to conduct business. A search of “computer /10 drug /10 tool”
yields no such cases however.
244. There are obviously exceptions to the general trend. See, e.g., United States v. Bass, 785
F.3d 1043, 1048–50 (6th Cir. 2015) (upholding cell phone warrant for financial fraud); In re XXX,
Inc., No. 14 Mag. 2258, 2014 WL 5510865, at *1 (S.D.N.Y. Oct. 31, 2014) (describing warrant to
search for credit card fraud evidence on cell phone); In re Search of Black iPhone 4, 27 F. Supp. 3d
74, 75 (D.D.C. 2014) (rejecting search warrant for cell phones (and hard drives) to search for child
pornography).
245. Of course, if police have probable cause to believe a cell phone contains evidence of child
pornography or financial crimes, it should be very easy for police to explain that to a magistrate
and seek to have that cell phone warrant treated differently than the standard approach I outline
below.
632 VANDERBILT LAW REVIEW [Vol. 69:3:585
Why does this matter? In some cell phone cases the distinction
between cell phones and traditional home computers matters because
there is no reason to think the suspect hid evidence in an unusual
location that would require sophisticated forensic analysis to uncover.
For example, if the suspect arranged drug deals exclusively via text
message with an undercover officer—a very common scenario246—the
police can find the evidence by having an officer manually scroll
through text messages to identify incriminating information by sight. A
complete download of the phone’s contents and a subsequent detailed
forensic analysis is simply unnecessary.
Or imagine that police were searching for a very specific video
or photograph that was recently recorded on the street. For instance, in
a post-Riley case, a suspect was using his cell phone to record a video
when he was arrested.247 The officers seized the phone and shut off the
video recorder.248 The video apparently contained incriminating
information, but the suspect had no opportunity to hide it before the
police seized the phone.249 The officers therefore knew exactly what they
were looking for and that it would be in the video library. The officers
could therefore find the evidence by manually searching through the
contents of the phone and then handing the device to a forensic
examiner to download it. There would be no need to rummage through
many gigabytes of the phone’s data.
Put simply, the way that cell phones are used makes them
different than traditional computers. Because many criminals—
particularly in drug cases and other street crimes—leave evidence in
places that are easy to access, the police can recover the data without
completely downloading the phone’s contents and reviewing millions of
pages of data.
When magistrates know that officers could recover the evidence
with less invasive searches, there would be no need to authorize a
search of “any and all data” on the phone. Nor would there be a need for
magistrates to trouble themselves with the search protocols discussed
above in Part IV. Rather, in cases in which probable cause is limited to
certain applications—for instance when undercover agents
communicated with suspects exclusively by text message—magistrates
should restrict searches in an easier way. As explained in Part V.B
below, in this subset of cases, magistrates should simply restrict where
246. For examples, see supra note 30 and accompanying text.
247. See People v. Watkins, 994 N.Y.S.2d 816, 817–18 (N.Y. Sup. Ct. 2014).
248. See id. at 817.
249. See id. (noting that the iPhone was placed on the vehicle as the police frisked the suspect).
2016] THE POST-RILEY SEARCH WARRANT 633
the police can search (i.e. which applications), rather than trying to
dictate how the search should be conducted.
B. Restricting Where on the Cell Phone Police Can Search
As explained in Part IV, ex ante search protocols for electronic
evidence are controversial because courts have rarely imposed
restrictions on how police are to execute warrants. But what if
magistrates could narrow cell phone search warrants by specifying
where police can search rather than how they should carry out the
search. Courts have long relied on the Fourth Amendment’s probable
cause and particularity guarantees to specify where police can search
for evidence. To use a simple example, when police have probable cause
a suspect is selling drugs out of his car, the magistrate should issue a
warrant for the suspect’s vehicle, but not for his house or office.250 The
same approach could be applied to the different applications on a cell
phone. If there is probable cause for incriminating text messages, but
not for photos, videos, or any other data on the phone, then magistrates
should limit the search warrant to the text messaging application,
rather than the whole phone. We might think of this as a geographic
restriction on cell phone searches.
Of course, a restriction on where police may search on a cell
phone will not always be proper. In some types of cases, it is apparent
that a suspect could have hidden evidence in unusual places on a cell
phone.251 In these cases, a full-scale forensic analysis of the phone may
be necessary. For example, if police have probable cause that a cell
phone contains child pornography, the incriminating files could be
mislabeled and hidden anywhere. Police therefore should not be
restricted to searching the iPhoto application. In these cases—what I
would call “complicated” search cases—magistrates should impose the
search protocols described in Part IV above. Magistrates might set in
place ex ante regulations on how files should be separated and filtered
after being downloaded, but magistrates should not restrict the search
warrant to particular applications on the phone.252
250. Of course, a warrant can lawfully authorize the search of more than one location, but
there must be adequate probable cause for each location. See LAFAVE, supra note 23, at § 4.5(c);
People v. Russell, 360 N.E.2d 515, 517–18 (Ill. App. Ct. 1977) (assessing search warrant for person
and car and finding probable cause for the former, but not the latter).
251. Child pornography and financial misconduct cases are the obvious examples.
252. For instance, in a post-Riley financial fraud case federal agents procured a warrant for
“any records of communication, indicia of use, ownership, or possession, including electronic
calendars, address books, e-mails, and chat logs.” United States v. Bass, 785 F.3d 1043, 1050 (6th
Cir. 2015). The Sixth Circuit properly concluded that because financial documents could be hidden
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Yet, while many cell phone search warrants might involve
“complicated” cases in which the evidence could be mislabeled and
hidden, a substantial number of cases do not fall into that category.
Rather, some cases are, for lack of a better word, “simple” searches. For
instance, police may have set up drug deals simply by exchanging text
messages with a suspect. Or law enforcement officers may know for a
fact that a suspect just took an incriminating video or photograph with
his phone. In these “simple” cases, the officers know the type of evidence
they are looking for and they know which application will hold that
evidence. A search warrant should therefore be issued only for that
application—a specific location on the phone—rather than the entire
phone. Restricting police to only searching certain locations is a
restriction on where the police can search, not a restriction on how they
can execute a warrant.253
The approach I am suggesting—limiting search warrants to
particular applications in “simple” cases—would be unique to cell
phones. Because of the nature of traditional computer investigations,
there are unlikely to be “simple” cases in which officers know that
incriminating evidence is in a particular file folder. In a traditional
computer, evidence could be buried anywhere. Thus, allowing police to
make brief examination of all files on a computer when executing a
warrant, as some courts do, makes sense and could be applied in all
traditional computer searches.254 Cell phones, however, are different.
Because cell phones are mobile, and have unique applications such as
text messaging for communications, there will be some “simple” cases
in which magistrates can restrict where police may search. The proposal
for limited search warrants in simple cell phone cases is thus extremely
limited.
Even though the proposal is narrow, there is one obvious
objection: if magistrates issue warrants restricting where police can
anywhere, a warrant authorizing a full search of a cell phone to look for a circumscribed list of
data was not overbroad. Id.
253. By way of analogy, think of a large university that has many buildings—a campus
library, a biology lab, and a law school, to name just a few. If there were probable cause to believe
a professor at the law school were engaged in drug dealing or securities fraud, a magistrate would
never issue a warrant for “the university.” It would simply make no sense that the law professor—
who has likely never set foot in the biology building—would have left evidence in the biology
department. Accordingly, the warrant—at its broadest—should be limited to the law school
building.
254. See, e.g., U.S. DEP’T OF JUSTICE, supra note 27, at 88 (listing several federal precedents
allowing investigators to conduct a brief review or examination of computer files following the
exercise of a valid warrant); see also United States v. Potts, 559 F. Supp. 2d 1162, 1175 (D. Kan.
2008) (approving investigators “opening or cursorily reviewing the first few ‘pages’ of such files in
order to determine precise content”).
2016] THE POST-RILEY SEARCH WARRANT 635
search on the phone it is possible that those restrictions might be
erroneous. For instance, undercover drug officers might have believed
all incriminating evidence would be in the suspect’s text messages, but
they could be wrong. Perhaps the suspect was using a different
application to send the messages, or perhaps incriminating messages
had been deleted and could only be recovered through a detailed
forensic analysis of the phone.255 In those instances, a search warrant
restricting police to manually searching the text message application
would fail to uncover the evidence for which the police have probable
cause.
While true, this objection should not be of much concern because
no evidence will be lost and police can simply request a broader search
warrant. Once police have seized a cell phone, they routinely disconnect
it from the network—either by removing the battery, placing it in
airplane mode, or storing it in a faraday bag256—to prevent the
destruction of evidence. Officers also have the ability to download the
contents of the phone using a data extraction device257 or to make a
mirror copy of the phone’s memory card.258 A key prerequisite of the
Supreme Court banning warrantless cell phone searches incident to
arrest in Riley was that there was no risk of evidence being destroyed
while police take the time to procure a warrant.259 Thus, if the police
execute a limited warrant—for example, only for text messages—and
do not find the incriminating evidence, the officers can simply return to
the magistrate and ask for a broader search warrant. Because the police
are in control of the cell phone, there is no chance evidence will be lost
255. Unfortunately, once a text message is deleted it is sometimes impossible to retrieve it.
See EDENS, supra note 82, at 160.
256. For a discussion of these and other techniques, see id. at 143–47.
257. See Gershowitz, Seizing a Cell Phone Incident to Arrest, supra note 9, at 606–07
(describing the controversial “Universal Forensic Extraction Device” that is available to law
enforcement).
258. See EDENS, supra note 82, at 169 (“Standard forensic process is to make an exact
duplicate of the device to be examined and to use forensic tools to examine the copy, not the
original.”).
259. See Riley v. California, 134 S. Ct. 2473, 2487 (2014) (“Remote wiping can be fully
prevented by disconnecting a phone from the network.”).
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or destroyed in the meantime.260 The only cost to the officers is the time
it takes to return to the magistrate.261
There is nothing revolutionary about suggesting that officers
return to the magistrate to request a broader search warrant. Some
states have statutes setting forth rules for subsequent warrants.262 And
even in the absence of statutes, it is common for judges to issue second
search warrants for the same location.263 Subsequent warrants are
already used with some frequency in traditional computer searches.
When officers execute a warrant for computer fraud or financial
misconduct they sometimes come across evidence of child
pornography.264 If agents are following proper protocol, they
immediately stop searching and apply for a second, broader warrant
that authorizes a search for child pornography.265
There have already been cell phone search warrant decisions in
which it would have been far preferable for magistrates to issue narrow
search warrants restricting where on the phone investigators could
search. For instance, in the post-Riley case of Moore v. State, police had
probable cause to believe Moore had used his cell phone to take
photographs as he perpetrated a sexual assault.266 Police, however,
convinced a magistrate to issue a search warrant for the entire contents
260. This, of course, is very different than a case involving a home, office, or other tangible
location. In those cases, if police do not find the evidence under the first warrant they either have
to station an officer at the location and prevent people from entering while awaiting a new warrant,
see Illinois v. MacArthur, 531 U.S. 326, 328–29 (2001) (holding that police officers preventing
defendant from entering his home for approximately two hours to obtain a warrant did not violate
the Fourth Amendment), or risk evidence destruction while they are off the premises.
261. Time is obviously not costless. But here the cost is offset by the added privacy protection
to the suspect.
262. See, e.g., TEX. CODE CRIM. PROC. 18.01(d):
A subsequent search warrant may be issued pursuant to Subdivision (10) of Article 18.02 of this code to search the same person, place, or thing subjected to a prior search under Subdivision (10) of Article 18.02 of this code only if the subsequent search warrant is issued by a judge of a district court, a court of appeals, the court of criminal appeals, or the supreme court.
263. See, e.g., Marshall v. State, 614 S.E.2d 169, 170–71 (Ga. App. 2005) (upholding a
subsequent search warrant).
264. See, e.g., United States v. Loera, 59 F. Supp. 3d 1089, 1094–95 (D.N.M. 2014)
(investigators obtained a search warrant related to computer fraud and email hijacking and
subsequently discovered child pornography files).
265. See, e.g., United States v. Wolfe, No. 00-5045, 2000 WL 1862667, at *1 (10th Cir. Dec. 20,
2000) (seeking second search warrant for child pornography after finding suspicious images during
warranted search for counterfeiting); United States v. Gray, 78 F. Supp. 2d 524, 527–28 (E.D. Va.
1999) (approving second search warrant for child pornography after finding suspicious files during
warranted search for computer hacking evidence); Rosa v. Commonwealth, 628 S.E.2d 92, 93–94
(Va. Ct. App. 2006) (procuring second warrant for child pornography after finding suspicious files
during warranted search for drug distribution).
266. 160 So.3d 728, 731 (Miss. Ct. App. 2015).
2016] THE POST-RILEY SEARCH WARRANT 637
of the phone.267 A better approach would have been for the magistrate
to issue a warrant for the photo application only. If that search failed to
turn up the incriminating evidence, the officers could then have applied
for a broader warrant requesting a complete forensic analysis of the
phone.
An even better example is United States v. Juarez, which was
decided the year before Riley.268 In Juarez, police observed the suspect
using his cell phone to videotape between the legs of women wearing
dresses as they walked down the street.269 The phone was still in
recording mode when the police seized it.270 Therefore the odds were
extremely low that incriminating evidence of Juarez’s crime would be
located anywhere other than the phone’s video application.
Nevertheless, police convinced a magistrate to issue an extremely broad
warrant for the entire contents of the cell phone.271 A better approach
would have been to issue a search warrant restricted only to the phone’s
video application. If that search failed to turn up the incriminating
street video, the officers should have then returned to the magistrate
and sought a broader warrant. And a magistrate properly assessing
probable cause may very well have rejected the request for the broader
warrant. Depending on the officer’s testimony, a judge might have
concluded that Juarez lacked the time to hide the evidence elsewhere
on the phone. And given that the police had no independent probable
cause for the other functions on the cell phone—there was no suspicion,
for instance, that his text messages or call history contained
incriminating information—a magistrate might properly conclude that
the officers were mistaken in their belief that Juarez was improperly
videotaping women.
* * *
While cell phones are mini-computers, in some “simple” search
cases—particularly when police are searching for drug communications
or other street crimes—it makes sense to treat cell phones differently
than traditional computers. In these cases, search warrants should
initially authorize law enforcement officers to conduct only a manual
analysis of the particular applications the police have probable cause to
search. In these straightforward cases where evidence is unlikely to be